Opinion · Supreme Court of North Carolina

Dudley v. . Cole

21 N.C. 429

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1836-12-05
Topic: general

Rotfin, Chief Justice, after stating the case as above, proceeded as follows: — It may be remarked in the outset, that this case is clear of every thing that could be said in favour of a third person, who might have become the purchaser under the execution, in the name of Simmons, against Orme, who instituted that suit, and claimed the benefit of the judgment, and was himself the purchaser. The relief we think is clear; the only doubt being, whether it ought not to be by an immediate reconveyance, notwithstanding the small sum applied to the costs of the other case. That the sale under Orme’s own process cannot be sustained, while the essential principles of justice and fairness, constitute any part of the system of equity, as administered in judicial tribunals, no mind we think can doubt. With the objections which might be taken at law, to those proceedings, on the grounds of the order for a new trial, the withholding from the County *434 Court the paper on which the judgment was rendered, or any matter of the like kind, this court does not deal. We assume that the judgment is right, so far as respects the action of the legal tribunals themselves ; and if that were not so, this court will not undertake to revise them, for. the purpose of correcting either mistakes of facts, or errors in law.

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Cited by: 3 opinions

DUDLEYv. COLE,21 N.C. 429(1836)

DAVID W. DUDLEY v. JAMES C. COLE.

Supreme Court of North Carolina

December Term, 1836.

1. Where the plaintiff in an execution obtained his judgment by fraud — there being no debt due him — and fraudulently prevented the defendant having it reversed; in equity he shall have no benefit from a sale under it.

2. Whether the purchaser of a stranger to the judgment would be protected?Quere.

ON 1 June, 1824, William Orme, in the name of John Simmons, to the use of Orme, sued out a warrant against Morris Ward for the sum of one hundred dollars, due by note, on which judgment was rendered by Daniel Smith, a justice of the peace, on the 5th day of that month for the sum demanded, and costs. On 28 March, 1825, Orme sued out afieri faciasthereon from another justice of the peace, and caused it to be levied on 1 June on a tract of land belonging to Ward, and returned to Jones County Court, and there obtained an order of sale; and on 12 September following, the sheriff exposed the land for sale, and Orme became the purchaser at one hundred-dollars and took the sheriff's deed. Afterwards William Orme died intestate, leaving one Robert Orme his heir at law, against whom judgments were rendered and executions issued in 1830, under which the defendant Cole purchased the same land, as the property of Robert Orme, and took the sheriff's deed. Cole thereupon brought an ejectment against Ward, who still continued in possession.Page 333

The original bill was brought in 1833 by Ward,in forma pauperis, and alleged that the judgment against him was fraudulently obtained, and the sale under it fraudulently made; and specially charged the following matters as constituting such fraud:

That the plaintiff did not owe Orme or Simmons any sum secured by note, nor any sum of money whatever, but that Simmons had been indebted to Ward by sundry bonds, of which one was for the sum of one hundred dollars, which had been placed in the hands of one Franks for collection; that Ward and Simmons came to a settlement, on which the former gave to the latter an acquittance against the bond held by Franks, and therein engaged to surrender or cancel it; (430) and that accordingly, by the consent of Ward and the directions of Simmons, Franks destroyed the bond before the year 1824; that Orme afterwards came into possession of the plaintiff's receipt to Simmons, and issued the before-mentioned warrant on it, which was served on 1 June, 1824, by one Lee, a constable, who summoned Ward to trial on the 5th of the same month at Trent Bridge, the usual place of trial in that district, and the place of Orme's residence; that Ward accordingly attended by the usual hour of trial, namely, the middle of the day, and requested Lee to return the warrant before a justice of the peace, who was then sitting to try all the other warrants, returnable there on that day; that Lee then informed him, and such was the fact, that in the early part of the day Mr. Smith had been passing by on his way to New Bern, and had been requested by Orme to stop and try that warrant, and that he did so, and gave judgment by default, without any evidence but the production of the receipt itself, and left all the papers with Orme, and immediately proceeded on his journey. The bill further charged that Ward immediately applied to Orme himself to produce the warrant for the purpose of a second trial before a magistrate then sitting on other warrants, which he refused; that in consequence thereof, as soon as Mr. Smith returned home Ward stated to him, on oath, his defense, and the advantage that had been taken to deprive him of it; whereupon Smith granted a new trial, and on 14 June, 1824, issued and delivered a written notice thereof to Lee, requiring him to have the parties and papers before a justice of the peace for such second trial, but that Orme refused to deliver or produce the papers; that Ward believed the judgment to be then superseded and no longer binding, and consequently that no steps could be taken against him in the matter until he should be again sued; that he knew and suspected nothing to the contrary until September of the succeeding year when, being at the courthouse, he heard the sheriff set up his land, under an order of sale, and upon inquiring discovered that in March, 1825, Orme had obtained from another justice of the (431)Page 334peace living in a remote part of the county an execution on the judgment, and had caused it to be levied on his land by one McDaniel, a constable, also residing in another and remote district, and returned to court, and had obtained the order of sale — all without notice to Ward: that Ward then applied to the sheriff to know what process was in hands against the land, and was told by him that, besides Orme's, he had an order of sale at the suit of one Bryant, and that if he would pay the debt to Bryant the sale should then be solely at the instance of Orme; and that Ward immediately paid Bryant and took his receipt for the debt, in the presence of the sheriff, to whom he was also ready, and offered to pay the costs; that the sheriff then proceeded in the sale as upon Orme's execution only, when Ward gave public notice of his intention to resist the sale and seek relief against it; but that Orme, notwithstanding, purchased as before mentioned and took a deed from the sheriff in which it was recited that the sale was made under both writs; that the application of any part of the price to the costs in Bryant's suit was unknown to Ward, who had been assured publicly that the sale was under Orme's execution only. The bill then stated that Ward refused to give up the possession, but continued to claim and reside on the land up to the time of the sheriff's sale to Cole under the execution against Robert Orme, and at that sale gave open notice of his right to all bidders, and particularly to a Mr. Roe, who bought the land as the agent of Cole, the defendant.

The prayer of the bill was for a reconveyance of the land; that the defendant might be enjoined from proceeding further in his action at law, and that the plaintiff might be quieted in his possession.

The answer denied all personal knowledge or information on the part of the defendant of any of the circumstances stated in the bill, touching the nature of William Orme's demand against the plaintiff or his method of proceeding thereon; and insisted that, as the same appeared of record to be regular, neither they nor the sale under them could be impeached for fraud as against him, because he was not a party (432) nor in anywise privy thereto, and was ignorant thereof when he paid his purchase money and took his deed from the sheriff. The answer admitted that the plaintiff continued in possession when the defendant purchased, and that he gave notice of his claim to the agent Roe, who made the purchase for Cole. The answer further stated that the sale in September, 1825, was under Bryant's execution for the costs due thereon, as well as under Orme's for the debt and costs, and that both are recited in the sheriff's deed to Orme; and insisted that at all events the title passed by virtue of the former.

By an interlocutory order the plaintiff was required to suffer judgment to be entered against him in the action of ejectment, and thePage 335defendant was enjoined from proceeding thereon, or otherwise disturbing the plaintiff until the hearing.

After replication and taking depositions, Ward died, having first devised the land in dispute to David W. Dudley, the present plaintiff, who revived the suit by a supplemental bill and bill of revivor; and the cause being ready for hearing, was transferred to this Court.

The defendant exhibited transcripts of the records of the county court, and also the deed made by the sheriff, from which it appears that the judgment and execution against Ward were for the sums and of the dates before mentioned, and that the sheriff satisfied the costs due to Bryant out of the sum bid by Orme, and applied the residue thereof to Orme's execution. By the transcript it also appeared that no note or other paper on which the judgment in the name of Simmons was rendered was returned to the county court.

The depositions of the magistrate Smith and of the constable Lee were filed, and fully sustained the allegations of the bill as to the nature of Orme's demand; the service and return of the warrant, and the trial and judgment thereon before the arrival of Ward, his dissatisfaction and application for a new trial, and the order therefor. Lee further stated that when he gave notice to Orme and demanded the paper, Orme replied that he could not deliver them as he had sold the debt and transferred the papers to another person, but would not (433) disclose to whom.

Other witnesses distinctly proved that the bond of Simmons, against which Ward gave a receipt, was, with the knowledge and at the request of Simmons, canceled by Franks soon after the date of the receipt.

Mr. Huggins, the sheriff, who made all the sales, stated that, in answer to Ward's inquiry, he informed him that he held the two executions and no others, and that if he would pay Bryant's debt the sale should proceed upon Orme's only; and that he did pay Bryant, and immediately gave notice that he would attempt to set aside a sale upon the other as fraudulent; but that, nevertheless, he put up the land by Orme's directions, and Orme bought it at one hundred dollars. He says that he would not have sold under the other writ for the costs, viz., four dollars and ninety-two cents, but that after Orme's purchase he applied as much of the price as discharged those costs.

Devereux for plaintiff.J. H. Bryan for defendant.

RUFFIN, C. J., after stating the case as above, proceeded as follows:

It may be remarked in the outset that this case is clear of everything that could be said in favor of a third person who might have becomePage 336the purchaser under the execution, in the name of Simmons, against Orme, who instituted that suit, and claimed the benefit of the judgment, and was himself the purchaser. The relief we think is clear, the only doubt being whether it ought not to be by an immediate reconveyance, notwithstanding the small sum applied to the costs of the other case. That the sale under Orme's own process cannot be sustained, while the essential principles of justice and fairness constitute any part of the system of equity, as administered in judicial tribunals, no mind we think can doubt. With the objections which might be taken at law to those proceedings on the grounds of the order for a new trial, the withholding from the county court the paper on which the judgment (434) was rendered, or any matter of the like kind, this Court does not deal. We assume that the judgment is right, so far as respects the action of the legal tribunals themselves; and if that were not so, this Court will not undertake to revise them for the purpose of correcting either mistakes of facts or errors in law. But when the party practices a deception upon the court of law, and thereby precludes the opposite party from all defense; when by means thereof he gets a judgment for a sum of money of which no part is due; and then further, by concealment and falsehood, defeats every fair effort made by the ordinary legal means for reexamining his judgment, a Court of Equity will restrain such a party from the unconscientious use of a legal advantage thus fraudulently obtained and thus fraudulently kept up. It is clear, in the first place, that there was no debt in this case, and that Orme was quite sensible of it. This would not be material, merely as it would show the judgment to be wrong, in a case in which the party sued had made defense, or had the opportunity of making it; but it becomes a most material inquiry when there has, in fact, been no defense, but it has been lost, apparently, by the contrivances of the plaintiff, as evidence of the motive of those contrivances. Besides the direct testimony of the witnesses as to the nature of the demand and of its being entirely unfounded, it is also strongly to be inferred from the circumstance that Orme took possession of the written instrument on which he got the judgment and did not have it returned to court with the judgment, but has suppressed it altogether; from the mode in which he took the judgment, just before Ward might be expected at the place of trial, according to the summons, and just before he did arrive; from his subsequent refusal to come to another trial, and the steps taken to enforce the judgment after he knew that it had been superseded, or at least that Ward thought it had, without the least intimation to Ward of his intentions, the Court cannot but find that Orme designed deliberately to deprive the other party of all opportunity of defense, in the first instance, and subsequently of all the ordinary legal meansPage 337of redress, either on the merits or the matter of law. The mark (435) seems to have been this land for, from the levy, we must take it that Ward had no personal property, nor it seems much of anything, for in this suit he appears as a pauper. It would be bad enough, by contrivance, to put such a man under the necessity of giving security for the debt to obtain a trialde novo;but it was yet worse to bring his land to sale under circumstances in their nature calculated to diminish the price, and then, after buying it, to tell him to reverse the judgment at law and get restitution, not of the land, but of the money it brought. Throughout the proceedings we are obliged to perceive the anxious purpose, by means of circumvention and contrivance, to defeat this poor man of the semblance of a trial, and to take from him his land, for a claim having no existence. The title derived under such proceedings, by the author of them, must be null.

But reliance is placed by the defendant on Bryant's judgment and execution to render the title indefeasible. We think it cannot have that effect, although that is admitted to be fair. If a sale under that execution had been rendered necessary, in order to secure those costs, by Orme's pressing a sale under his own, whereby the lien of the first would be lost, it perhaps would not be a hard measure of justice to hold that the whole sale was so far imbued with oppression and undue advantage that the contriver should not profit by it, to any purpose; but the Court cannot declare that the sale was, in fact, made for the costs on Bryant's execution, but rather the contrary. Such was the declaration of the sheriff to Ward, who was clearly under that impression. The recital in the sheriff's deed is not positively inconsistent with that supposition. After the sale the sheriff may have satisfied those costs out of the purchase money, because that was the only fund out of which he could then make them, and may have thought it proper, for that reason, to recite that execution in his deed. The circumstance may be accounted for in that way, and is in itself probable, rather than the supposition that the sheriff combined with Orme to have the sale under both writs, notwithstanding his assurance to the contrary, especially when there is no evidence from a bystander that the (436) sheriff did thus sell, in violation of his first declaration. Taking this to be the truth of the case, we must regard the sum of four dollars and ninety-two cents of Orme's money as having been applied by the sheriff to Ward's use, and to that extent the sheriff's deed must stand as a security, but no further.

The present defendant is in no better situation than Orme, in whose shoes he stands. The denial of personal notice cannot avail him. The possession of Ward and the express notice to his agent affect him.Page 338Besides being a purchaser at sheriff's sale, his case is governed by the principle ofFreeman v. Hill, lately in this Court, and he can only get the title of the defendant in the execution.

The decree must therefore be that the deed to Orme is good only as a security for the sum of four dollars and ninety-two cents, and that upon the payment thereof by the plaintiff to the defendant the latter shall convey the land in the pleadings and exhibits mentioned to the plaintiff, the devisee of the original plaintiff, free from any encumbrance by the defendant created, by a deed to be approved by the master, and the injunction be perpetuated. The defendant must pay all the costs at law and in equity.

PER CURIAM. Decree accordingly.Cited: Rutherford v. Green,37 N.C. 127;Tomlinson v. Blackburn, id., 511;Sutton v. Schonwald,86 N.C. 202;Grantham v. Kennedy,91 N.C. 154.

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